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In re Farley

Supreme Court of New York, Appellate Division

May 8, 1912

In the Matter of the Petition of WILLIAM W. FARLEY, as State Commissioner of Excise, Appellant, for an Order Revoking and Canceling Liquor Tax Certificate No. 15,966, Issued to THOMAS H. HOGAN, Respondent.

Page 292

APPEAL by the petitioner, William W. Farley, as State Commissioner of Excise, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 13th day of November, 1911, as denied an application to revoke a liquor tax certificate because of a violation of subdivision E of section 30 of the Liquor Tax Law.

COUNSEL

A. M. Sperry [Louis M. King of counsel], for the appellant.

William E. Woollard [Michael D. Reilly of counsel], for the respondent.

BETTS, J.:

Thomas H. Hogan held a certificate for trafficking in liquors at No. 560 Broadway in the city of Albany for the year commencing October 1, 1910.

On the 8th day of June, 1911, William W. Farley, as State Commissioner of Excise, began a proceeding to cancel such liquor tax certificate, alleging three different kinds of violation of the Liquor Tax Law: One, wrongfully and unlawfully suffering, permitting and having an opening or means of entrance or passageway between the certificated place and a place where gambling was suffered and permitted; in other words, a violation of subdivision E of section 30 of the Liquor Tax Law; two, for selling liquor on Sunday, and, three, for maintaining screens, blinds and curtains covering a part of the window, thus concealing the bar.

A trial was had and the certificate was revoked upon the second and third grounds, and the application to revoke such liquor tax certificate because of the violation of subdivision E of section 30 was denied. Commissioner Farley has appealed from that part of the order only, denying the application for revocation of said liquor tax certificate.

It appears in the evidence that Hogan's saloon extends from Broadway through to James street, and there is an entrance into said saloon both from Broadway and James street; that above the James street part, at least of the saloon, is a place at which gambling was permitted and carried on; that the

Page 293

only entrance to this place where gambling was permitted or carried on was from the saloon through a door opening out of the saloon, only a few feet from the James street entrance, into a small room, which room opened into the stairs near the James street entrance to the floor above where gambling was carried on.

It does not appear from the evidence that there was any connection whatever between the business of Hogan and the business said to be carried on by the Eastern Telegraph Company on the second floor. Such evidence as there is is to the effect that no liquor was sold in Hogan's place to be carried up and served in the rooms of the Eastern Telegraph Company.

It also appeared that this entrance to the rooms of the Eastern Telegraph Company had been practically in the same place for many years, and that there was no other entrance from the street except through Hogan's saloon or café. Hogan claims to have had no control over the door opening from his saloon to the floor above; that the key was controlled and kept by the parties who occupied the floor above; that he did not know that gambling was carried on or permitted there ...


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